The High Court has ruled in favour of our client EF in his application for permission to use the last remaining embryo that was created with his late wife’s eggs in treatment with a surrogate, notwithstanding the fact that his wife (referred to as AB) had not provided written consent for such use. The judgment can be read here. The case raised follows from the case of Jennings -v- Human Fertilisation and Embryology Authority [2022] EWHC 1619 (Fam) and in G -v- Human Fertilisation and Embryology Authority [2024] EWHC 2453 (Fam). The Human Fertilisation and Embryology Authority (HFEA) opposed the application.
It was argued on behalf of EF that AB was not given an opportunity to provide her written consent to her embryos being used after her death in surrogacy due to the format of the consent forms published by the HFEA, the same forms as in Jennings, which have since been updated by the HFEA. It was also submitted that a decision preventing him using the remaining embryo in treatment with a surrogate following AB’s death constituted a significant and disproportionate interference with his Article 8 rights under the European Convention on Human Rights (‘ECHR’), alone and interpreted in light of Article 9, and those rights in the context of Article 14.
In a judgment handed down on Friday 22 November, Mrs Justice Theis concluded from the evidence that an inference could be drawn that AB would have wanted EF to use their embryo in treatment with a surrogate in the event of her death. She also stated that “AB was not given the opportunity to consent to EF being able to use their partner created embryo in treatment with a surrogate in the event of her death due to an omission in the HFEA scheme.”
The judgment goes on to state “The insistence on written consent would, in the particular circumstances of this case defeat rather than promote this objective of the legislative scheme. In circumstances where the interference with EF’s Art 8 rights would be significant, final and lifelong there are no countervailing factors to justify the interference as, in the circumstances, permitting the application would not undermine a fundamental objective of the statutory scheme”.
Mrs Justice Theis concluded her judgment by stating that “This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount. It does not dispense with the requirement of consent, it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers wishes and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament”.
EF’s solicitors were Ambika Pugalia of Hill Dickinson LLP and James Lawford Davies of LDMH Partners.
EF’s barristers were Jenni Richards KC and Stephanie David of 39 Essex Chambers.
Please get in touch with our Life Sciences team if you require any advice in regard to assisted reproduction/genetic technologies.
For further information, please contact:
Ambika Pugalia, Hill Dickinson
ambika.pugalia@hilldickinson.com
